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The informal settlement conference is anything but informal. Physicians who are unprepared for the informal settlement conference are risking their career and their license. Read on to learn what happens at the TMB informal settlement conference and how physicians can defend themselves.
At Gardner Employment Law, we know what it takes to defend a physician at every step of the TMB (Texas Medical Board) review process. If you have received an initial complaint letter from the TMB or are getting prepared for an informal settlement conference, reach out to us today.
What is the Informal Settlement Conference?
The informal settlement conference, also called the “ISC,” is a sit-down meeting in a conference room attended by two board members (one physician member and one public member), one TMB staff attorney, the physician, and anyone the physician chooses to bring to the conference. The physician may bring his or her own attorney or other approved persons or witnesses. While there will be at least one TMB attorney present, there may be more. The goal of the informal settlement conference is to settle the dispute before it goes to formal proceedings at the SOAH (State Office of Administrative Hearings). The TMB states that approximately 90% of all disciplinary actions the TMB takes are resolved through the informal settlement conference.
What Happens Before the Informal Settlement Conference?
Notice of an ISC being scheduled must be sent to the physician at least 45 days prior to the scheduled date. That notice will include all of the evidence the TMB intends to bring to the conference. However, this does not include all of the information that the TMB possesses about the matter. For example, at this point the TMB may possess exculpatory information that the staff attorney does not intend to use at the ISC. While the notice requirement may be the first indication of the ISC, there are other prior steps to a TMB review. We outlined every step of the TMB review process in “How Do Physicians Defend a Review at the Texas Medical Board.” We explained what to do after receiving the TMB’s initial complaint letter in “A Physician’s Response to the TMB’s Complaint Letter”.
The notice of the ISC will also contain a packet containing all the evidence the TMB plans to use against the physician during the ISC. If the physician plans to present documentary evidence, the physician must submit that evidence to the TMB in advance of the conference. There are a variety of deadlines for rescheduling, submitting evidence, and all procedural aspects of the ISC which a physician must be aware of. Missing a deadline for submitting evidence, for example, will likely result in the TMB rejecting anything the physician attempts to submit. It is critically important that a physician consult with an experienced medical license defense attorney after receiving notice of the ISC. An experienced attorney will be able to help you craft your defense and assemble your evidence in a timely fashion before the conference.
What Happens at the Informal Settlement Conference?
At the conference, both sides will present their evidence and arguments before a final decision is reached. Do not let the word “informal” sway your thinking. Everything you submit, everything you say, and everything you do can and will be held against you at the conference and in any following proceedings. The ISC and the TMB review process as a whole is prosecutorial. If you are not adequately prepared to present compelling evidence and strong arguments, your medical license may be in serious jeopardy. A survey taken by the Texas Medical Association said that physicians felt that the atmosphere of the informal settlement conference was one in which a physician is “guilty-until-proven-innocent.”
While a formal structure exists for the ISC based on the Texas Administrative Code, every conference is a bit different. The amount of evidence brought, the number of witnesses, the facts of what happened, the severity of the complaint, and many other factors can change what actually happens during the conference. In addition to the documentary evidence and arguments presented, the TMB attorney in charge will question the physician. The physician’s attorney can then ask follow-up or clarifying questions. A good lawyer can help you to prepare for this interrogation, including role-play beforehand, practice questions, and what documents to study before the ISC. Once there is no more evidence to discuss, questions to ask, or arguments to make, the physician and his or her attorney will be asked to step out while the board members deliberate and come to a decision.
I have a physician friend who also testifies in trials as an expert witness. He told me once, “The only thing that doctors hate worse than going to court is going to the TMB.” Missing a filing deadline can result in having no evidence with which to defend yourself. A misspoken argument can and will be held against you later. The TMB review process is not designed to be easy for physicians to navigate, nor is it designed to benefit physicians.
What Happens After the Informal Settlement Conference?
After the substantive portion of the conference ends and the board deliberates, the physician and attorney return to the conference room where the board members present their decision. The TMB can choose to either submit the case to the DPRC (Disciplinary Process Review Committee) for dismissal, offer the physician a remedial plan, or propose an agreed order for the physician to sign. Obviously, dismissal is the best case scenario, meaning that the case is over and the physician can return to his or her practice. The remedial plan and the agreed order are not so pleasant.
The TMB typically offers a remedial plan for minor violations and is considered non-disciplinary. The remedial plan can be likened to a settlement. The plan will give the physician certain corrective actions to follow in order to avoid a formal disciplinary action. A physician may be required to undergo additional training or CME courses, take regular drug tests, or a myriad of other required actions which are not considered “disciplinary” but do impact the physician’s professional life. By accepting a remedial plan, the physician is able to avoid a formal disciplinary charge, but will be responsible for following the remedial plan to the letter.
The TMB offers an agreed order for more serious violations of the Medical Practice Act and is considered disciplinary. The agreed order can contain a broad range of penalties and requirements. Most times the agreed order will allow the physician to continue treating patients, even if in a much more reduced functional capacity. The TMB will post an agreed order publicly. Signing an agreed order may cause changes in the physician’s insurance coverage and may place board certifications at risk. An agreed order is serious and will negatively affect a physician’s career. An attorney experienced in dealing with the TMB usually will be able to negotiate some of the terms of either the remedial plan or the agreed order to lessen the impact on the physician. However, neither the remedial plan nor the agreed order is positive, and either will leave a blemish on the physician’s record.
On some occasions, the TMB will offer only one option to the physician to end the matter at this level. This requires the physician to choose either the option that the TMB has put forward or take the case to the SOAH. If the TMB will not negotiate the wording in a draconian agreed order, for example, the physician may be forced to reject the offer and proceed to a hearing at SOAH. An administrative law judge, an “ALJ,” presides at the SOAH hearing, which is similar to a mini-trial without a jury. At the SOAH, physicians are entitled to “have their day in court” if they so choose. However, understanding and balancing all of these options should be done with the counsel of an attorney who has experience trying cases at the SOAH. Depending on the facts of your case and the evidence that you have to offer the ALJ, it may be better to take a remedial plan or an agreed order rather than going to the hearing before an ALJ. On the other hand, if the TMB is being overly harsh and trying to make an example out of a physician, which has happened on occasion, it may be worth the effort to take the case to the hearing level.
Succeeding at the Informal Settlement Conference
Going into the ISC without knowing what is at stake can be ruinous. Again, know that the TMB is a prosecutorial organization — and they are prosecuting you. Having an experienced attorney with you to guide you through this process is essential. The TMB will bring its attorneys, and physicians should bring theirs as well.